Philosophy of Law
Philosophy of law (or legal philosophy) is concerned with providing a general philosophical analysis of law and legal institutions. Issues in the field range from abstract conceptual questions about the nature of law and legal systems to normative questions about the relationship between law and morality and the justification for various legal institutions.
Topics in legal philosophy tend to be more abstract than related topics in political philosophy and applied ethics. For example, whereas the question of how properly to interpret the U.S. Constitution belongs to democratic theory (and hence falls under the heading of political philosophy), the analysis of legal interpretation falls under the heading of legal philosophy. Likewise, whereas the question of whether capital punishment is morally permissible falls under the heading of applied ethics, the question of whether the institution of punishment can be justified falls under the heading of legal philosophy.
There are roughly three categories into which the topics of legal philosophy fall: analytic jurisprudence, normative jurisprudence, and critical theories of law. Analytic jurisprudence involves providing an analysis of the essence of law so as to understand what differentiates it from other systems of norms, such as ethics. Normative jurisprudence involves the examination of normative, evaluative, and otherwise prescriptive issues about the law, such as restrictions on freedom, obligations to obey the law, and the grounds for punishment. Finally, critical theories of law, such as critical legal studies and feminist jurisprudence, challenge more traditional forms of legal philosophy.
Table of Contents
- Analytic Jurisprudence
- Natural Law Theory
- Legal Positivism
- The Conventionality Thesis
- The Social Fact Thesis
- The Separability Thesis
- Ronald Dworkin's Third Theory
- Normative Jurisprudence
- Freedom and the Limits of Legitimate Law
- Legal Moralism
- Legal Paternalism
- The Offense Principle
- The Obligation to Obey Law
- The Justification of Punishment
- Freedom and the Limits of Legitimate Law
- Critical Theories of Law
- Legal Realism
- Critical Legal Studies
- Law and Economics
- Outsider Jurisprudence
- References and Further Reading
1. Analytic Jurisprudence
The principal objective of analytic jurisprudence has traditionally been to provide an account of what distinguishes law as a system of norms from other systems of norms, such as ethical norms. As John Austin describes the project, analytic jurisprudence seeks "the essence or nature which is common to all laws that are properly so called" (Austin 1995, p. 11). Accordingly, analytic jurisprudence is concerned with providing necessary and sufficient conditions for the existence of law that distinguish law from non-law.
While this task is usually interpreted as an attempt to analyze the concepts of law and legal system, there is some confusion as to both the value and character of conceptual analysis in philosophy of law. As Brian Leiter (1998) points out, philosophy of law is one of the few philosophical disciplines that takes conceptual analysis as its principal concern; most other areas in philosophy have taken a naturalistic turn, incorporating the tools and methods of the sciences. To clarify the role of conceptual analysis in law, Brian Bix (1995) distinguishes a number of different purposes that can be served by conceptual claims:
- to track linguistic usage;
- to stipulate meanings;
- to explain what is important or essential about a class of objects; and
- to establish an evaluative test for the concept-word.
Bix takes conceptual analysis in law to be primarily concerned with (3) and (4).
In any event, conceptual analysis of law remains an important, if controversial, project in contemporary legal theory. Conceptual theories of law can be divided into two main headings: (a) those that affirm there is a conceptual relation between law and morality and (b) those that deny that there is such a relation. Nevertheless, Ronald Dworkin's view is often characterized as a third theory partly because it is not clear where he stands on the question of whether there is a conceptual relation between law and morality.
a. Natural Law Theory
All forms of natural law theory subscribe to the Overlap Thesis, which is that there is a necessary relation between the concepts of law and morality. According to this view, then, the concept of law cannot be fully articulated without some reference to moral notions. Though the Overlap Thesis may seem unambiguous, there are a number of different ways in which it can be interpreted.
The strongest form of the Overlap Thesis underlies the classical naturalism of St. Thomas Aquinas and William Blackstone. As Blackstone describes the thesis:
This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original (1979, p. 41).
In this passage, Blackstone articulates the two claims that constitute the theoretical core of classical naturalism: 1) there can be no legally valid standards that conflict with the natural law; and 2) all valid laws derive what force and authority they have from the natural law. On this view, to paraphrase Augustine, an unjust law is no law at all.
Related to Blackstone's classical naturalism is the neo-naturalism of John Finnis (1980). Finnis believes that the naturalism of Aquinas and Blackstone should not be construed as a conceptual account of the existence conditions for law. According to Finnis (see also Bix, 1996), the classical naturalists were not concerned with giving a conceptual account of legal validity; rather they were concerned with explaining the moral force of law: "the principles of natural law explain the obligatory force (in the fullest sense of "obligation") of positive laws, even when those laws cannot be deduced from those principles" (Finnis 1980, pp. 23-24). On Finnis's view of the Overlap Thesis, the essential function of law is to provide a justification for state coercion. Accordingly, an unjust law can be legally valid, but cannot provide an adequate justification for use of the state coercive power and is hence not obligatory in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the concept of law. An unjust law, on this view, is legally binding, but is not fully law.
Lon Fuller (1964) rejects the idea that there are necessary moral constraints on the content of law. On Fuller's view, law is necessarily subject to a procedural morality consisting of eight principles:
P1: the rules must be expressed in general terms;
P2: the rules must be publicly promulgated;
P3: the rules must be prospective in effect;
P4: the rules must be expressed in understandable terms;
P5: the rules must be consistent with one another;
P6: the rules must not require conduct beyond the powers of the affected parties;
P7: the rules must not be changed so frequently that the subject cannot rely on them; and
P8: the rules must be administered in a manner consistent with their wording.
On Fuller's view, no system of rules that fails minimally to satisfy these principles of legality can achieve law's essential purpose of achieving social order through the use of rules that guide behavior. A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide behavior because people will not be able to determine what the rules require. Accordingly, Fuller concludes that his eight principles are "internal" to law in the sense that they are built into the existence conditions for law: "A total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all" (1964, p. 39).
b. Legal Positivism
Opposed to all forms of naturalism is legal positivism, which is roughly constituted by three theoretical commitments: (i) the Social Fact Thesis, (ii) the Conventionality Thesis, and (iii) the Separability Thesis. The Social Fact Thesis (which is also known as the Pedigree Thesis) asserts that it is a necessary truth that legal validity is ultimately a function of certain kinds of social facts. The Conventionality Thesis emphasizes law's conventional nature, claiming that the social facts giving rise to legal validity are authoritative in virtue of some kind of social convention. The Separability Thesis, at the most general level, simply denies naturalism's Overlap Thesis; according to the Separability Thesis, there is no conceptual overlap between the notions of law and morality.
i. The Conventionality Thesis
According to the Conventionality Thesis, it is a conceptual truth about law that legal validity can ultimately be explained in terms of criteria that are authoritative in virtue of some kind of social convention. Thus, for example, H.L.A. Hart (1996) believes the criteria of legal validity are contained in a rule of recognition that sets forth rules for creating, changing, and adjudicating law. On Hart's view, the rule of recognition is authoritative in virtue of a convention among officials to regard its criteria as standards that govern their behavior as officials. While Joseph Raz does not appear to endorse Hart's view about a master rule of recognition containing the criteria of validity, he also believes the validity criteria are authoritative only in virtue of a convention among officials.
ii. The Social Fact Thesis
The Social Fact Thesis asserts that legal validity is a function of certain social facts. Borrowing heavily from Jeremy Bentham, John Austin (1995) argues that the principal distinguishing feature of a legal system is the presence of a sovereign who is habitually obeyed by most people in the society, but not in the habit of obeying any determinate human superior. On Austin's view, a rule R is legally valid (that is, is a law) in a society S if and only if R is commanded by the sovereign in S and is backed up with the threat of a sanction. The relevant social fact that confers validity, on Austin's view, is promulgation by a sovereign willing to impose a sanction for noncompliance.
Hart takes a different view of the Social Fact Thesis. Hart believes that Austin's theory accounts, at most, for one kind of rule: primary rules that require or prohibit certain kinds of behavior. On Hart's view, Austin overlooked the presence of other primary rules that confer upon citizens the power to create, modify, and extinguish rights and obligations in other persons. As Hart points out, the rules governing the creation of contracts and wills cannot plausibly be characterized as restrictions on freedom that are backed by the threat of a sanction.
Most importantly, however, Hart argues Austin overlooks the existence of secondary meta-rules that have as their subject matter the primary rules themselves and distinguish full-blown legal systems from primitive systems of law:
[Secondary rules] may all be said to be on a different level from the primary rules, for they are all about such rules; in the sense that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves. They specify the way in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined (Hart 1994, p. 92).
Hart distinguishes three types of secondary rules that mark the transition from primitive forms of law to full-blown legal systems: (1) the rule of recognition, which "specif[ies] some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts" (Hart 1994, p. 92); (2) the rule of change, which enables a society to add, remove, and modify valid rules; and (3) the rule of adjudication, which provides a mechanism for determining whether a valid rule has been violated. On Hart's view, then, every society with a full-blown legal system necessarily has a rule of recognition that articulates criteria for legal validity that include provisions for making, changing and adjudicating law. Law is, to use Hart's famous phrase, "the union of primary and secondary rules" (Hart 1994, p. 107).
According to Hart's view of the Social Fact Thesis, then, a proposition P is legally valid in a society S if and only if it satisfies the criteria of validity contained in a rule of recognition that is binding in S. As we have seen, the Conventionality Thesis implies that a rule of recognition is binding in S only if there is a social convention among officials to treat it as defining standards of official behavior. Thus, on Hart's view, "[the] rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials" (Hart 1994, p. 113).
iii. The Separability Thesis
The final thesis comprising the foundation of legal positivism is the Separability Thesis. In its most general form, the Separability Thesis asserts that law and morality are conceptually distinct. This abstract formulation can be interpreted in a number of ways. For example, Klaus F¸þer (1996) interprets it as making a meta-level claim that the definition of law must be entirely free of moral notions. This interpretation implies that any reference to moral considerations in defining the related notions of law, legal validity, and legal system is inconsistent with the Separability Thesis.
More commonly, the Separability Thesis is interpreted as making only an object-level claim about the existence conditions for legal validity. As Hart describes it, the Separability Thesis is no more than the "simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so" (Hart 1994, pp. 181-82). Insofar as the object-level interpretation of the Separability Thesis denies it is a necessary truth that there are moral constraints on legal validity, it implies the existence of a possible legal system in which there are no moral constraints on legal validity.
Though all positivists agree there are possible legal systems without moral constraints on legal validity, there are conflicting views on whether there are possible legal systems with such constraints. According to inclusive positivism (also known as incorporationism and soft positivism), it is possible for a society's rule of recognition to incorporate moral constraints on the content of law. Prominent inclusive positivists include Jules Coleman and Hart, who maintains that "the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values ... such as the Sixteenth or Nineteenth Amendments to the United States Constitution respecting the establishment of religion or abridgements of the right to vote" (Hart 1994, p. 250).
In contrast, exclusive positivism (also called hard positivism) denies that a legal system can incorporate moral constraints on legal validity. Exclusive positivists like Raz (1979) subscribe to the Source Thesis, according to which the existence and content of law can always be determined by reference to its sources without recourse to moral argument. On this view, the sources of law include both the circumstances of its promulgation and relevant interpretative materials, such as court cases involving its application.
c. Ronald Dworkin's Third Theory
Ronald Dworkin rejects positivism's Social Fact Thesis on the ground that there are some legal standards the authority of which cannot be explained in terms of social facts. In deciding hard cases, for example, judges often invoke moral principles that Dworkin believes do not derive their legal authority from the social criteria of legality contained in a rule of recognition (Dworkin 1977, p. 40). Nevertheless, since judges are bound to consider such principles when relevant, they must be characterized as law. Thus, Dworkin concludes, "if we treat principles as law we must reject the positivists' first tenet, that the law of a community is distinguished from other social standards by some test in the form of a master rule" (Dworkin 1977, p. 44).
Dworkin believes adjudication is and should be interpretive: "judges should decide hard cases by interpreting the political structure of their community in the following, perhaps special way: by trying to find the best justification they can find, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements to the details of, for example, the private law of tort or contract" (Dworkin 1982, p. 165). There are, then, two elements of a successful interpretation. First, since an interpretation is successful insofar as it justifies the particular practices of a particular society, the interpretation must fit with those practices in the sense that it coheres with existing legal materials defining the practices. Second, since an interpretation provides a moral justification for those practices, it must present them in the best possible moral light. Thus, Dworkin argues, a judge should strive to interpret a case in roughly the following way:
A thoughtful judge might establish for himself, for example, a rough "threshold" of fit which any interpretation of data must meet in order to be "acceptable" on the dimension of fit, and then suppose that if more than one interpretation of some part of the law meets this threshold, the choice among these should be made, not through further and more precise comparisons between the two along that dimension, but by choosing the interpretation which is "substantively" better, that is, which better promotes the political ideals he thinks correct (Dworkin 1982, p. 171).
Accordingly, on Dworkin's view, the legal authority of a binding principle derives from the contribution it makes to the best moral justification for a society's legal practices considered as a whole. Thus, a legal principle maximally contributes to such a justification if and only if it satisfies two conditions:
- the principle coheres with existing legal materials; and
- the principle is the most morally attractive standard that satisfies (1).
The correct legal principle is the one that makes the law the moral best it can be.
In later writings, Dworkin expands the scope of his "constructivist" view beyond adjudication to encompass the realm of legal theory. Dworkin distinguishes conversational interpretation from artistic/creative interpretation and argues that the task of interpreting a social practice is more like artistic interpretation:
The most familiar occasion of interpretation is conversation. We interpret the sounds or marks another person makes in order to decide what he has said. Artistic interpretation is yet another: critics interpret poems and plays and paintings in order to defend some view of their meaning or theme or point. The form of interpretation we are studying-the interpretation of a social practice-is like artistic interpretation in this way: both aim to interpret something created by people as an entity distinct from them, rather than what people say, as in conversational interpretation" (Dworkin 1986, p. 50).
Artistic interpretation, like judicial interpretation, is constrained by the dimensions of fit and justification: "constructive interpretation is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong" (Dworkin 1986, p. 52).
On Dworkin's view, the point of any general theory of law is to interpret a very complex set of related social practices that are "created by people as an entity distinct from them"; for this reason, Dworkin believes the project of putting together a general theory of law is inherently constructivist:
General theories of law must be abstract because they aim to interpret the main point and structure of legal practice, not some particular part or department of it. But for all their abstraction, they are constructive interpretations: they try to show legal practice as a whole in its best light, to achieve equilibrium between legal practice as they find it and the best justification of that practice. So no firm line divides jurisprudence from adjudication or any other aspect of legal practice (Dworkin 1986, p. 90).
Indeed, so tight is the relation between jurisprudence and adjudication, according to Dworkin, that jurisprudence is no more than the most general part of adjudication; thus, Dworkin concludes, "any judge's opinion is itself a piece of legal philosophy" (Dworkin 1986, p. 90).
Accordingly, Dworkin rejects not only positivism's Social Fact Thesis, but also what he takes to be its underlying presuppositions about legal theory. Hart distinguishes two perspectives from which a set of legal practices can be understood. A legal practice can be understood from the "internal" point of view of the person who accepts that practice as providing legitimate guides to conduct, as well as from the "external" point of view of the observer who wishes to understand the practice but does not accept it as being authoritative or legitimate.
Hart understands his theory of law to be both descriptive and general in the sense that it provides an account of fundamental features common to all legal systems-which presupposes a point of view that is external to all legal systems. For this reason, he regards his project as "a radically different enterprise from Dworkin's conception of legal theory (or 'jurisprudence' as he often terms it) as in part evaluative and justificatory and as 'addressed to a particular legal culture', which is usually the theorist's own and in Dworkin's case is that of Anglo-American law" (Hart 1994, p. 240).
These remarks show Hart believes Dworkin's theoretical objectives are fundamentally different from those of positivism, which, as a theory of analytic jurisprudence, is largely concerned with conceptual analysis. For his part, Dworkin conceives his work as conceptual but not in the same sense that Hart regards his work:
We all-at least all lawyers-share a concept of law and of legal right, and we contest different conceptions of that concept. Positivism defends a particular conception, and I have tried to defend a competing conception. We disagree about what legal rights are in much the same way as we philosophers who argue about justice disagree about what justice is. I concentrate on the details of a particular legal system with which I am especially familiar, not simply to show that positivism provides a poor account of that system, but to show that positivism provides a poor conception of the concept of a legal right (Dworkin 1977, 351-52).
These differences between Hart and Dworkin have led many legal philosophers, most recently Bix (1996), to suspect that they are not really taking inconsistent positions at all. Accordingly, there remains an issue as to whether Dworkin's work should be construed as falling under the rubric of analytic jurisprudence.
2. Normative Jurisprudence
Normative jurisprudence involves normative, evaluative, and otherwise prescriptive questions about the law. Here we will examine three key issues: (a) when and to what extent laws can restrict the freedom of citizens, (b) the nature of one's obligation to obey the law, and (c) the justification of punishment by law.
a. Freedom and the Limits of Legitimate Law
Laws limit human autonomy by restricting freedom. Criminal laws, for example, remove certain behaviors from the range of behavioral options by penalizing them with imprisonment and, in some cases, death. Likewise, civil laws require people to take certain precautions not to injure others and to honor their contracts. Given that human autonomy deserves prima facie moral respect, the question arises as to what are the limits of the state's legitimate authority to restrict the freedom of its citizens.
John Stuart Mill provides the classic liberal answer in the form of the harm principle:
[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. Over himself, over his own body and mind, the individual is sovereign (Mill 1906, pp. 12-13).
While Mill left the notion of harm underdeveloped, he is most frequently taken to mean only physical harms and more extreme forms of psychological harm.
Though Mill's view—or something like it—enjoys currency among the public, it has generated considerable controversy among philosophers of law and political philosophers. Many philosophers believe that Mill understates the limits of legitimate state authority over the individual, claiming that law may be used to enforce morality, to protect the individual from herself, and in some cases to protect individuals from offensive behavior.
i. Legal Moralism
Legal moralism is the view that the law can legitimately be used to prohibit behaviors that conflict with society's collective moral judgments even when those behaviors do not result in physical or psychological harm to others. According to this view, a person's freedom can legitimately be restricted simply because it conflicts with society's collective morality; thus, legal moralism implies that it is permissible for the state to use its coercive power to enforce society's collective morality.
The most famous legal moralist is Patrick Devlin, who argues that a shared morality is essential to the existence of a society:
[I]f men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if, having based it on common agreement, the agreement goes, the society will disintegrate. For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price. (Devlin 1965, p. 10).
Insofar as human beings cannot lead a meaningful existence outside of society, it follows, on Devlin's view, that the law can be used to preserve the shared morality as a means of preserving society itself.
H.L.A. Hart (1963) points out that Devlin overstates the extent to which preservation of a shared morality is necessary to the continuing existence of a society. Devlin attempts to conclude from the necessity of a shared social morality that it is permissible for the state to legislate sexual morality (in particular, to legislate against same-sex sexual relations), but Hart argues it is implausible to think that "deviation from accepted sexual morality, even by adults in private, is something which, like treason, threatens the existence of society" (Hart 1963, p. 50). While enforcement of certain social norms protecting life, safety, and property are likely essential to the existence of a society, a society can survive a diversity of behavior in many other areas of moral concern-as is evidenced by the controversies in the U.S. surrounding abortion and homosexuality.
ii. Legal Paternalism
Legal paternalism is the view that it is permissible for the state to legislate against what Mill calls "self-regarding actions" when necessary to prevent individuals from inflicting physical or severe emotional harm on themselves. As Gerald Dworkin describes it, a paternalist interference is an "interference with a person's liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced" (G. Dworkin 1972, p. 65). Thus, for example, a law requiring use of a helmet when riding a motorcycle is a paternalistic interference insofar as it is justified by concerns for the safety of the rider.
Dworkin argues that Mill's view that a person "cannot rightfully be compelled to do or forbear because it will be better for him" (Mill 1906, p. 13) precludes paternalistic legislation to which fully rational individuals would agree. According to Dworkin, there are goods, such as health and education, that any rational person needs to pursue her own good-no matter how that good is conceived. Thus, Dworkin concludes, the attainment of these basic goods can legitimately be promoted in certain circumstances by using the state's coercive force.
Dworkin offers a hypothetical consent justification for his limited legal paternalism. On his view, there are a number of different situations in which fully rational adults would consent to paternalistic restrictions on freedom. For example, Dworkin believes a fully rational adult would consent to paternalistic restrictions to protect her from making decisions that are "far-reaching, potentially dangerous and irreversible" (G. Dworkin 1972, p. 80). Nevertheless, he argues that there are limits to legitimate paternalism: (1) the state must show that the behavior governed by the proposed restriction involves the sort of harm that a rational person would want to avoid; (2) on the calculations of a fully rational person, the potential harm outweighs the benefits of the relevant behavior; and (3) the proposed restriction is the least restrictive alternative for protecting against the harm.
iii. The Offense Principle
Joel Feinberg believes the harm principle does not provide sufficient protection against the wrongful behaviors of others, as it is inconsistent with many criminal prohibitions we take for granted as being justified. If the only legitimate use of the state coercive force is to protect people from harm caused by others, then statutes prohibiting public sex are impermissible because public sex might be offensive but it does not cause harm (in the Millian sense) to others.
Accordingly, Feinberg argues the harm principle must be augmented by the offense principle, which he defines as follows: "It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end" (Feinberg 1985). By "offense," Feinberg intends a subjective and objective element: the subjective element consists in the experience of an unpleasant mental state (for example, shame, disgust, anxiety, embarrassment); the objective element consists in the existence of a wrongful cause of such a mental state.
b. The Obligation to Obey Law
Natural law critics of positivism (for example, Fuller 1958) frequently complain that if positivism is correct, there cannot be a moral obligation to obey the lawqua law (that is, to obey the law as such, no matter what the laws are, simply because it is the law). As Feinberg (1979) puts the point:
The positivist account of legal validity is hard to reconcile with the [claim] that valid law as such, no matter what its content, deserves our respect and general fidelity. Even if valid law is bad law, we have some obligation to obey it simply because it is law. But how can this be so if a law's validity has nothing to do with its content?
The idea is this: if what is essential to law is just that there exist specified recipes for making law, then there cannot be a moral obligation to obey a rule simply because it is the law.
Contemporary positivists, for the most part, accept the idea that positivism is inconsistent with an obligation to obey law qua law (compare Himma 1998), but argue that the mere status of a norm as law cannot give rise to any moral obligation to obey that norm. While there might be a moral obligation to obey a particular law because of its moral content (for example, laws prohibiting murder) or because it solves a coordination problem (for example, laws requiring people to drive on the right side of the road), the mere fact that a rule is law does not provide a moral reason for doing what the law requires.
Indeed, arguments for the existence of even a prima facie obligation to obey law (that is, an obligation that can be outweighed by competing obligations) have largely been unsuccessful. Arguments in favor of an obligation to obey the law roughly fall into four categories: (1) arguments from gratitude; (2) arguments from fair play; (3) arguments from implied consent; and (4) arguments from general utility.
The argument from gratitude begins with the observation that all persons, even those who are worst off, derive some benefit from the state's enforcement of the law. On this view, a person who accepts benefits from another person thereby incurs a duty of gratitude towards the benefactor. And the only plausible way to discharge this duty towards the government is to obey its laws. Nevertheless, as M.B.E. Smith points out (1973, p. 953), "if someone confers benefits on me without any consideration of whether I want them, and if he does this in order to advance some purpose other than promotion of my particular welfare, I have no obligation to be grateful towards him." Since the state does not give citizens a choice with respect to such benefits, the mere enjoyment of them cannot give rise to a duty of gratitude.
John Rawls (1964) argues that there is a moral obligation to obey law qua law in societies in which there is a mutually beneficial and just scheme of social cooperation. What gives rise to a moral obligation to obey law qua law in such societies is a duty of fair play: fairness requires obedience of persons who intentionally accept the benefits made available in a society organized around a just scheme of mutually beneficial cooperation. There are a couple of problems here. First, Rawls's argument does not establish the existence of a content-independent obligation to obey law; the obligation arises only in those societies that institutionalize a just scheme of social cooperation. Second, even in such societies, citizens are not presented with a genuine option to refuse those benefits. For example, I cannot avoid the benefits of laws ensuring clean air. But accepting benefits one is not in a position to refuse cannot give rise to an obligation of fair play.
The argument from consent grounds an obligation to obey law on some sort of implied promise. As is readily evident, we can voluntarily assume obligations by consenting to them or making a promise. Of course, most citizens never explicitly promise or consent to obey the laws; for this reason, proponents of this argument attempt to infer consent from such considerations as continued residence and acceptance of benefits from the state. Nevertheless, acceptance of benefits one cannot decline no more implies consent to obey law than it does duties of fair play or gratitude. Moreover, the prohibitive difficulties associated with emigration preclude an inference of consent from continued residence.
Finally, the argument from general utility grounds the duty to obey the law in the consequences of universal disobedience. Since, according to this argument, the consequences of general disobedience would be catastrophic, it is wrong for any individual to disobey the law; for no person may disobey the law unless everyone may do so. In response, Smith points out that this strategy of argument leads to absurdities: "We will have to maintain, for example, that there is a prima facie obligation not to eat dinner at five o'clock, for if everyone did so, certain essential services could not be maintained" (Smith 1973, p. 966).
c. The Justification of Punishment
Punishment is unique among putatively legitimate acts in that its point is to inflict discomfort on the recipient; an act that is incapable of causing a person minimal discomfort cannot be characterized as a punishment. In most contexts, the commission of an act for the purpose of inflicting discomfort is morally problematic because of its resemblance to torture. For this reason, institutional punishment requires a moral justification sufficient to distinguish it from other practices of purposely inflicting discomfort on other people.
Justifications for punishment typically take five forms: (1) retributive; (2) deterrence; (3) preventive; (4) rehabilitative; and (5) restitutionary. According to the retributive justification, what justifies punishing a person is that she committed an offense that deserves the punishment. On this view, it is morally appropriate that a person who has committed a wrongful act should suffer in proportion to the magnitude of her wrongdoing. The problem, however, is that the mere fact that someone is deserving of punishment does not imply it is morally permissible for the state to administer punishment; it would be wrong for me, for example, to punish someone else's child even though her behavior might deserve it.
In contrast to the retributivist theories that look back to a person's prior wrongful act as justification for punishment, utilitarian theories look forward to the beneficial consequences of punishing a person. There are three main lines of utilitarian reasoning. According to the deterrence justification, punishment of a wrongdoer is justified by the socially beneficial effects that it has on other persons. On this view, punishment deters wrongdoing by persons who would otherwise commit wrongful acts. The problem with the deterrence theory is that it justifies punishment of one person on the strength of the effects that it has on other persons. The idea that it is permissible to deliberately inflict discomfort on one person because doing so may have beneficial effects on the behavior of other persons appears inconsistent with the Kantian principle that it is wrong to use people as mere means.
The preventive justification argues that incarcerating a person for wrongful acts is justified insofar as it prevents that person from committing wrongful acts against society during the period of incarceration. The rehabilitative justification argues that punishment is justified in virtue of the effect that it has on the moral character of the offender. Each of these justifications suffers from the same flaw: prevention of crime and rehabilitation of the offender can be achieved without the deliberate infliction of discomfort that constitutes punishment. For example, prevention of crime might require detaining the offender, but it does not require detention in an environment that is as unpleasant as those typically found in prisons.
The restitutionary justification focuses on the effect of the offender's wrongful act on the victim. Other theories of punishment conceptualize the wrongful act as an offense against society; the restitutionary theory sees wrongdoing as an offense against the victim. Thus, on this view, the principal purpose of punishment must be to make the victim whole to the extent that this can be done: "The point is not that the offender deserves to suffer; it is rather that the offended party desires compensation" (Barnett 1977, p. 289). Accordingly, a criminal convicted of wrongdoing should be sentenced to compensate her victim in proportion to the victim's loss. The problem with the restitutionary theory is that it fails to distinguish between compensation and punishment. Compensatory objectives focus on the victim, while punitive objectives focus on the offender.
3. Critical Theories of Law
a. Legal Realism
The legal realist movement was inspired by John Chipman Gray and Oliver Wendall Holmes and reached its apex in the 1920s and 30s through the work of Karl Llewellyn, Jerome Frank, and Felix Cohen. The realists eschewed the conceptual approach of the positivists and naturalists in favor of an empirical analysis that sought to show how practicing judges really decide cases (see Leiter 1998). The realists were deeply skeptical of the ascendant notion that judicial legislation is a rarity. While not entirely rejecting the idea that judges can be constrained by rules, the realists maintained that judges create new law through the exercise of lawmaking discretion considerably more often than is commonly supposed. On their view, judicial decision is guided far more frequently by political and moral intuitions about the facts of the case (instead of by legal rules) than theories like positivism and naturalism acknowledge.
As an historical matter, legal realism arose in response to legal formalism, a particular model of legal reasoning that assimilates legal reasoning to syllogistic reasoning. According to the formalist model, the legal outcome (that is, the holding) logically follows from the legal rule (major premise) and a statement of the relevant facts (minor premise). Realists believe that formalism understates judicial lawmaking abilities insofar as it represents legal outcomes as entailed syllogistically by applicable rules and facts. For if legal outcomes are logically implied by propositions that bind judges, it follows that judges lack legal authority to reach conflicting outcomes.
Legal realism can roughly be characterized by the following claims:
- the class of available legal materials is insufficient to logically entail a unique legal outcome in most cases worth litigating at the appellate level (the Local Indeterminacy Thesis);
- in such cases, judges make new law in deciding legal disputes through the exercise of a lawmaking discretion (the Discretion Thesis); and
- judicial decisions in indeterminate cases are influenced by the judge's political and moral convictions, not by legal considerations.
Though (3) is logically independent of (1) and (2), (1) seems to imply (2): insofar as judges decide legally indeterminate cases, they must be creating new law.
It is worth noting the relations between legal realism, formalism, and positivism. While formalism is often thought to be entailed by positivism, it turns out that legal realism is not only consistent with positivism, but also presupposes the truth of all three of positivism's core theses. Indeed, the realist acknowledges that law is essentially the product of official activity, but believes that judicial lawmaking occurs more frequently than is commonly assumed. But the idea that law is essentially the product of official activity presupposes the truth of positivism's Conventionality, Social Fact, and Separability theses. Though the preoccupations of the realists were empirical (that is, attempting to identify the psychological and sociological factors influencing judicial decision-making), their implicit conceptual commitments were decidedly positivistic in flavor.
b. Critical Legal Studies
The critical legal studies (CLS) movement attempts to expand the radical aspects of legal realism into a Marxist critique of mainstream liberal jurisprudence. CLS theorists believe the realists understate the extent of indeterminacy; whereas the realists believe that indeterminacy is local in the sense that it is confined to a certain class of cases, CLS theorists argue that law is radically (or globally) indeterminate in the sense that the class of available legal materials rarely, if ever, logically/causally entails a unique outcome.
CLS theorists emphasize the role of ideology in shaping the content of the law. On this view, the content of the law in liberal democracies necessarily reflects "ideological struggles among social factions in which competing conceptions of justice, goodness, and social and political life get compromised, truncated, vitiated, and adjusted" (Altman 1986, p. 221). The inevitable outcome of such struggles, on this view, is a profound inconsistency permeating the deepest layers of the law. It is this pervasive inconsistency that gives rise to radical indeterminacy in the law. For insofar as the law is inconsistent, a judge can justify any of a number of conflicting outcomes.
At the heart of the CLS critique of liberal jurisprudence is the idea that radical indeterminacy is inconsistent with liberal conceptions of legitimacy. According to these traditional liberal conceptions, the province of judges is to interpret, and not make, the law. For, on this view, democratic ideals imply that lawmaking must be left to legislators who, unlike appointed judges, are accountable to the electorate. But if law is radically indeterminate, then judges nearly always decide cases by making new law, which is inconsistent with liberal conceptions of the legitimate sources of lawmaking authority.
c. Law and Economics
The law and economics movement argues for the value of economic analysis in the law both as a description about how courts and legislators do behave and as a prescription for how such officials should behave. The legal economists, led by Richard Posner, argue that the content of many areas of the common law can be explained in terms of its tendency to maximize preferences:
[M]any areas of law, especially the great common law fields of property, torts, crimes, and contracts, bear the stamp of economic reasoning. It is not a refutation that few judicial opinions contain explicit references to economic concepts. Often the true grounds of decision are concealed rather than illuminated by the characteristic rhetoric of judicial opinions. Indeed, legal education consists primarily of learning to dig beneath the rhetorical surface to find those grounds, many of which may turn out to have an economic character (Posner 1992, p. 23).
Posner subscribes to the so-called efficiency theory of the common law, according to which "the common law is best (not perfectly) explained as a system for maximizing the wealth of society" (Posner 1992, p. 23).
More influential than Posner's descriptive claims is his normative view that law should strive to maximize wealth. According to Posner, the proper goal of the statutory and common law is to promote wealth maximization, which can best be done by facilitating the mechanisms of the free market. Posner's normative view combines elements of utilitarian analysis with a Kantian respect for autonomy. On the utilitarian side, markets tend to maximize wealth and the satisfaction of preferences. In a market transaction with no third-party effects, wealth is increased because all parties are made better off by the transaction-otherwise there would be no incentive to consummate the transaction-and no one is made worse off.
On the Kantian side, the law should facilitate market transactions because market transactions best reflect autonomous judgments about the value of individual preferences. At least ideally, individuals express and realize their preferences through mutually consensual market transactions consummated from positions of equal bargaining power. Thus, market transactions tend, ideally, to be both efficient (because they tend to maximize wealth without harmful third-party effects) and just (because all parties are consenting).
d. Outsider Jurisprudence
So-called "outsider jurisprudence" is concerned with providing an analysis of the ways in which law is structured to promote the interests of white males and to exclude females and persons of color. For example, one principal objective of feminist jurisprudence is to show how patriarchal assumptions have shaped the content of laws in a wide variety of areas: property, contract, criminal law, constitutional law, and the law of civil rights. Additionally, feminist scholars challenge traditional ideals of judicial decision-making according to which judges decide legal disputes by applying neutral rules in an impartial and objective fashion. Feminists have, of course, always questioned whether it is possible for judges to achieve an objective and impartial perspective, but now question whether the traditional model is even desirable.
Critical race theory is likewise concerned to point up the way in which assumptions of white supremacy have shaped the content of the law at the expense of persons of color. Additionally, critical race theorists show how the experience, concerns, values, and perspectives of persons of color are systematically excluded from mainstream discourse among practicing lawyers, judges, and legislators. Finally, such theorists attempt to show how assumptions about race are built into most liberal theories of law.
4. References and Further Reading
- Andrew Altman (1986), "Legal Realism, Critical Legal Studies, and Dworkin," Philosophy and Public Affairs, vol. 15, no. 2, pp. 205-236.
- Thomas Aquinas (1988), On Law, Morality and Politics (Indianapolis: Hackett Publishing Co.).
- John Austin (1977), Lectures on Jurisprudence and the Philosophy of Positive Law (St. Clair Shores, MI: Scholarly Press.
- John Austin (1995), The Province of Jurisprudence Determined (Cambridge: Cambridge University Press).
- Randy E. Barnett (1977), "Restitution: A New Paradigm of Criminal Justice," Ethics, vol. 87, no. 4, pp. 279-301.
- Jeremy Bentham (1988), A Fragment of Government (Cambridge: Cambridge University Press).
- Jeremy Bentham (1970), Of Laws In General (London: Athlone Press).
- Brian Bix (1995), "Conceptual Questions and Jurisprudence," Legal Theory, vol. 1, no. 4 (December), pp. 465-479.
- Brian Bix (1996a), Jurisprudence: Theory and Context (Boulder, CO: Westview Press).
- Brian Bix (1996b), "Natural Law Theory," in Dennis M. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory (Cambridge: Blackwell Publishing Co.).
- William Blackstone (1979), Commentaries on the Law of England (Chicago: The University of Chicago Press).
- Jules L. Coleman (1989), "On the Relationship Between Law and Morality," Ratio Juris, vol. 2, no. 1, pp. 66-78.
- Jules L. Coleman (1982), "Negative and Positive Positivism," 11 Journal of Legal Studies vol. 139, no. 1, pp. 139-164.
- Jules L. Coleman (1996), "Authority and Reason," in Robert P. George, The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press), pp. 287-319.
- Jules L. Coleman (1998), "Incorporationism, Conventionality and The Practical Difference Thesis," Legal Theory, vol. 4, no. 4, pp. 381-426.
- Jules L. Coleman and Jeffrie Murphy (1990), Philosophy of Law (Boulder, CO: Westview Press).
- Kimberle Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas, eds. (1995), Critical Race Theory: The Key Writings That Formed the Movement (New York: The New Press).
- Patrick Devlin (1965), The Enforcement of Morals (Oxford: Oxford University Press).
- Gerald Dworkin (1972), "Paternalism," The Monist, vol. 56, pp. 64-84.
- Ronald Dworkin (1978), Taking Rights Seriously (Cambridge: Harvard University Press).
- Ronald Dworkin (1982), "'Natural' Law Revisited," University of Florida Law Review vol. 34, no. 2, pp. 165-188.
- Ronald Dworkin (1986), Law's Empire (Cambridge: Harvard University Press).
- Joel Feinberg (1985), Offense to Others (Oxford: Oxford University Press).
- Joel Feinberg (1979), "Civil Disobedience in the Modern World," Humanities in Review, vol. 2, pp. 37-60.
- John Finnis (1980), Natural Law and Natural Rights (Oxford: Clarendon Press).
- William Fisher, Morton Horovitz, and Thomas Reed, eds. (1993), American Legal Realism (New York: Oxford University Press).
- Jerome Frank (1930), Law and the Modern Mind (New York: Brentano's Publishing).
- Lon L. Fuller (1964), The Morality of Law (New Haven, CT: Yale University Press).
- Lon L. Fuller (1958), "Positivism and Fidelity to Law," Harvard Law Review, vol. 71, no. 4, pp. 630-672 .
- Klaus Füßer (1996), "Farewell to 'Legal Positivism': The Separation Thesis Unravelling," in Robert P. George, The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press), pp. 119-162.
- John Chipman Gray (1921), The Nature and Source of Law (New York: Macmillan).
- Kent Greenawalt (1987), Conflicts of Law and Morality (Oxford: Clarendon Press).
- H.L.A. Hart (1994), The Concept of Law, 2nd Edition (Oxford: Oxford University Press).
- H.L.A. Hart (1983), Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press).
- H.L.A. Hart (1963), Law, Liberty and Morality (Oxford: Oxford University Press).
- Kenneth Einar Himma (1998), "Positivism, Naturalism, and the Obligation to Obey Law," Southern Journal of Philosophy, vol. 36, no. 2, pp. 145-161.
- Oliver Wendall Holmes (1898), "The Path of the Law," Harvard Law Review, vol. 110, no. 5, pp. 991-1009 .
- Brian Leiter (1998), "Naturalism and Naturalized Jurisprudence," in Brian Bix (ed.), Analyzing Law: New Essays in Legal Theory (Oxford: Clarendon Press).
- Brian Leiter, "Legal Realism," in Dennis M. Patterson, ed. (1996), A Companion to Philosophy of Law and Legal Theory (Oxford: Blackwell Publishers).
- John Stuart Mill (1906), On Liberty (New York: Alfred A. Knopf).
- Michael Moore (1992), "Law as a Functional Kind," in Robert P. George (ed.), Natural Law Theories: Contemporary Essays (Oxford: Clarendon Press).
- Michael Moore, "The Moral Worth of Retribution," in Ferdinand Schoeman, ed. (1987), Responsibility, Character, and the Emotions (Cambridge: Cambridge University Press).
- Richard Posner (1992), Economic Analysis of Law, 4th Edition (Boston: Little, Brown, and Company).
- John Rawls (1964), "Legal Obligation and the Duty of Fair Play," in Sidney Hook (ed.), Law and Philosophy (New York: New York University Press), pp. 3-18.
- Joseph Raz (1979), The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press).
- Joseph Raz (1980), The Concept of a Legal System: An Introduction to the Theory of Legal Systems, Second Edition (Oxford: Clarendon Press).
- Roger Shiner (1992), Norm and Nature (Oxford: Clarendon Press).
- M.B.E. Smith (1973), "Do We have a Prima Facie Obligation to Obey the Law," 82 Yale Law Journal 950-976.
- Patricia Smith, ed. (1993), Feminist Jurisprudence (Oxford: Oxford University Press).
- C.L. Ten (1987), Crime, Guilt, and Punishment (Oxford: Oxford University Press).
- W.J. Waluchow (1994), Inclusive Legal Positivism (Oxford: Clarendon Press).
Kenneth Einar Himma
Seattle Pacific University
U. S. A.
[This article is excerpted from the first 5 chapters of The Ethics of Liberty. Audio versions of these chapters, read by Jeff Riggenbach, are now available for podcast or download.]
1. Natural Law and Reason
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Among intellectuals who consider themselves "scientific," the phrase "the nature of man" is apt to have the effect of a red flag on a bull. "Man has no nature!" is the modern rallying cry and typical of the sentiment of political philosophers today was the assertion of a distinguished political theorist some years ago before a meeting of the American Political Science Association that "man's nature" is a purely theological concept that must be dismissed from any scientific discussion.1
In the controversy over man's nature, and over the broader and more controversial concept of "natural law," both sides have repeatedly proclaimed that natural law and theology are inextricably intertwined. As a result, many champions of natural law, in scientific or philosophic circles, have gravely weakened their case by implying that rational, philosophical methods alone cannot establish such law: that theological faith is necessary to maintain the concept. On the other hand, the opponents of natural law have gleefully agreed; since faith in the supernatural is deemed necessary to belief in natural law, the latter concept must be tossed out of scientific, secular discourse, and be consigned to the arcane sphere of the divine studies. In consequence, the idea of a natural law founded on reason and rational inquiry has been virtually lost.2
The believer in a rationally established natural law must, then, face the hostility of both camps: the one group sensing in this position an antagonism toward religion; and the other group suspecting that God and mysticism are being slipped in by the back door. To the first group, it must be said that they are reflecting an extreme Augustinian position which held that faith rather than reason was the only legitimate tool for investigating man's nature and man's proper ends. In short, in this fideist tradition, theology had completely displaced philosophy.3 The Thomist tradition, on the contrary, was precisely the opposite: vindicating the independence of philosophy from theology, and proclaiming the ability of man's reason to understand and arrive at the laws, physical and ethical, of the natural order, if belief in a systematic order of natural laws open to discovery by man's reason is per se anti-religious, then anti-religious also were St. Thomas and the later Scholastics, as well as the devout Protestant jurist Hugo Grotius. The statement that there is an order of natural law, in short, leaves open the problem of whether or not God has created that order; and the assertion of the viability of man's reason to discover the natural order leaves open the question of whether or not that reason was given to man by God. The assertion of an order of natural laws discoverable by reason is, by itself, neither pro- nor anti-religious.4
Because this position is startling to most people today, let us investigate this Thomistic position a little further. The statement of absolute independence of natural law from the question of the existence of God was implicit rather than flatly asserted in St. Thomas himself; but like so many implications of Thomism, it was brought forth by Suarez and the other brilliant Spanish Scholastics of the late sixteenth century. The Jesuit Suarez pointed out that many Scholastics had taken the position that the natural law of ethics, the law of what is good and bad for man, does not depend upon God's will. Indeed, some of the Scholastics had gone so far as to say that:
even though God did not exist, or did not make use of His reason, or did not judge rightly of things, if there is in man such a dictate of right reason to guide him, it would have had the same nature of law as it now has.
Or, as a modern Thomist philosopher declares:
If the word "natural' means anything at all, it refers to the nature of a man, and when used with "law," "natural" must refer to an ordering that is manifested in the inclinations of a man's nature and to nothing else. Hence, taken in itself, there is nothing religious or theological in the "Natural Law" of Aquinas.
Dutch Protestant jurist Hugo Grotius declared, in his De Iure Belli ac Pacis (1625):
What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God.
Measureless as is the power of God, nevertheless it can be said that there are certain things over which that power does not extend … Just as even God cannot cause that two times two should not make four, so He cannot cause that which is intrinsically evil be not evil.
D'Entrèves concludes that:
[Grotius's] definition of natural law has nothing revolutionary. When he maintains that natural law is that body of rules which Man is able to discover by the use of his reason, he does nothing but restate the Scholastic notion of a rational foundation of ethics. Indeed, his aim is rather to restore that notion which had been shaken by the extreme Augustinianism of certain Protestant currents of thought. When he declares that these rules are valid in themselves, independently of the fact that God willed them, he repeats an assertion which had already been made by some of the schoolmen.
Grotius's aim, d'Entrèves adds, "was to construct a system of laws which would carry conviction in an age in which theological controversy was gradually losing the power to do so." Grotius and his juristic successors — Pufendorf, Burlamaqui, and Vattel — proceeded to elaborate this independent body of natural laws in a purely secular context, in accordance with their own particular interests, which were not, in contrast to the Schoolmen, primarily theological. Indeed, even the eighteenth-century rationalists, in many ways dedicated enemies of the Scholastics, were profoundly influenced in their very rationalism by the Scholastic tradition.
Thus, let there be no mistake: in the Thomistic tradition, natural law is ethical as well as physical law; and the instrument by which man apprehends such law is his reason — not faith, or intuition, or grace, revelation, or anything else. In the contemporary atmosphere of sharp dichotomy between natural law and reason — and especially amid the irrationalist sentiments of "conservative" thought — this cannot be underscored too often. Hence, St. Thomas Aquinas, in the words of the eminent historian of philosophy Father Copleston, "emphasized the place and function of reason in moral conduct. He [Aquinas] shared with Aristotle the view that it is the possession of reason which distinguished man from the animals" and which "enables him to act deliberately in view of the consciously apprehended end and raises him above the level of purely instinctive behavior."
Aquinas, then, realized that men always act purposively, but also went beyond this to argue that ends can also be apprehended by reason as either objectively good or bad for man. For Aquinas, then, in the words of Copleston, "there is therefore room for the concept of 'right reason,' reason directing man's acts to the attainment of the objective good for man." Moral conduct is therefore conduct in accord with right reason: "If it is said that moral conduct is rational conduct, what is meant is that it is conduct in accordance with right reason, reason apprehending the objective good for man and dictating the means to its attainment."
"Reason is not bound to be a mere slave to the passions, confined to cranking out the discovery of the means to arbitrarily chosen ends."
In natural-law philosophy, then, reason is not bound, as it is in modern post-Humean philosophy, to be a mere slave to the passions, confined to cranking out the discovery of the means to arbitrarily chosen ends. For the ends themselves are selected by the use of reason; and "right reason" dictates to man his proper ends as well as the means for their attainment. For the Thomist or natural-law theorist, the general law of morality for man is a special case of the system of natural law governing all entities of the world, each with its own nature and its own ends. "For him the moral law … is a special case of the general principles that all finite things move toward their ends by the development of their potentialities." And here we come to a vital difference between inanimate or even non-human living creatures, and man himself; for the former are compelled to proceed in accordance with the ends dictated by their natures, whereas man, "the rational animal," possesses reason to discover such ends and the free will to choose.
Which doctrine, natural law or those of its critics, is to be considered truly rational was answered incisively by the late Leo Strauss, in the course of a penetrating critique of the value-relativism in political theory of Professor Arnold Brecht. For, in contrast to natural law,
positivistic social science … is characterized by the abandonment of reason or the flight from reason….
According to the positivistic interpretation of relativism which prevails in present-day social science … reason can tell us which means are conducive to which ends; it cannot tell us which attainable ends are to be preferred to other attainable ends. Reason cannot tell us that we ought to choose attainable ends; if someone 'loves him who desires the impossible' reason may tell him that he acts irrationally, but it cannot tell him that he ought to act rationally, or that acting irrationally is acting badly or basely. If rational conduct consists in choosing the right means for the right end, relativism teaches in effect that rational conduct is impossible.
Finally, the unique place of reason in natural-law philosophy has been affirmed by the modern Thomistic philosopher, the late Father John Toohey. Toohey defined sound philosophy as follows: "Philosophy, in the sense in which the word is used when scholasticism is contrasted with other philosophies, is an attempt on the part of man's unaided reason to give a fundamental explanation of the nature of things."
2. Natural Law as "Science"
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It is indeed puzzling that so many modern philosophers should sniff at the very term "nature" as an injection of mysticism and the supernatural. An apple, let fall, will drop to the ground; this we all observe and acknowledge to be in the nature of the apple (as well as the world in general). Two atoms of hydrogen combined with one of oxygen will yield one molecule of water — behavior that is uniquely in the nature of hydrogen, oxygen, and water. There is nothing arcane or mystical about such observations. Why then cavil at the concept of "nature"? The world, in fact, consists of a myriad number of observable things, or entities. This is surely an observable fact. Since the world does not consist of one homogenous thing or entity alone, it follows that each one of these different things possesses differing attributes, otherwise they would all be the same thing. But if A, B, C, etc., have different attributes, it follows immediately that they have different natures. It also follows that when these various things meet and interact, a specifically delimitable and definable result will occur. In short, specific, delimitable causes will have specific delimitable effects.
"It is indeed puzzling that so many modern philosophers should sniff at the very term 'nature' as an injection of mysticism and the supernatural."
The observable behavior of each of these entities is the law of their natures, and this law includes what happens as a result of the interactions. The complex that we may build up of these laws may be termed the structure of natural law. What is "mystical" about that?
In the field of purely physical laws, this concept will usually differ from modern positivistic terminology only on high philosophical levels; applied to man, however, the concept is far more controversial. And yet, if apples and stones and roses each have their specific natures, is man the only entity, the only being, that cannot have one? And if man does have a nature, why cannot it too be open to rational observation and reflection? If all things have natures, then surely man's nature is open to inspection; the current brusque rejection of the concept of the nature of man is therefore arbitrary and apriori.
One common, flip criticism by opponents of natural law is: who is to establish the alleged truths about man? The answer is not who but what: man's reason. Man's reason is objective, i.e., it can be employed by all men to yield truths about the world. To ask what is man's nature is to invite the answer. Go thou and study and find out! It is as if one man were to assert that the nature of copper were open to rational investigation and a critic were to challenge him to "prove" this immediately by setting forth on the spot all the laws that have been discovered about copper.
Another common charge is that natural-law theorists differ among themselves, and that therefore all natural-law theories must be discarded. This charge comes with peculiar ill grace when it comes, as it often does, from utilitarian economists. For economics has been a notoriously contentious science — and yet few people advocate tossing all economics therefore into the discard. Furthermore, difference of opinion is no excuse for discarding all sides to a dispute; the responsible person is the one who uses his reason to examine the various contentions and make up his own mind. He does not simply say apriori, "a plague on all your houses!" The fact of man's reason does not mean that error is impossible. Even such "hard" sciences as physics and chemistry have had their errors and their fervent disputes. No man is omniscient or infallible — a law, by the way, of man's nature.
The natural law ethic decrees that for all living things, "goodness" is the fulfillment of what is best for that type of creature; "goodness" is therefore relative to the nature of the creature concerned. Thus, Professor Cropsey writes:
The classical [natural law] doctrine is that each thing is excellent in the degree to which it can do the things for which its species is naturally equipped … Why is the natural good? … [Because] there is neither a way nor a reason to prevent ourselves from distinguishing between useless and serviceable beasts, for example; and … the most empirical and … rational standard of the serviceable, or the limit of the thing's activity is set by its nature. We do not judge elephants to be good because they are natural; or because nature is morally good — whatever that would mean. We judge a particular elephant to be good by the light of what elephant nature makes it possible for elephants to do and to be.
In the case of man, the natural-law ethic states that goodness or badness can be determined by what fulfills or thwarts what is best for man's nature.
"The brusque rejection of the concept of the nature of man is arbitrary…."
The natural law, then, elucidates what is best for man — what ends man should pursue that are most harmonious with, and best tend to fulfill, his nature. In a significant sense, then, natural law provides man with a "science of happiness," with the paths which will lead to his real happiness. In contrast praxeology or economics as well as the utilitarian philosophy with which this science has been closely allied, treat "happiness" in the purely formal sense as the fulfillment of those ends which people happen — for whatever reason — to place high on their scales of value. Satisfaction of those ends yields to man his "utility" or "satisfaction" or "happiness." Value in the sense of valuation or utility is purely subjective, and decided by each individual. This procedure is perfectly proper for the formal science of praxeology, or economic theory, but not necessarily elsewhere. For in natural-law ethics, ends are demonstrated to be good or bad for man in varying degrees; value here is objective — determined by the natural law of man's being, and here "happiness" for man is considered in the commonsensical, contentual sense. As Father Kenealy put it:
This philosophy maintains that there is in fact an objective moral order within the range of human intelligence, to which human societies are bound in conscience to conform and upon which the peace and happiness of personal, national and international life depend.
And the eminent English jurist, Sir William Blackstone, summed up the natural law and its relation to human happiness as follows:
This is the foundation of what we call ethics, or natural law … demonstrating that this or that action tends to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destruction of man's real happiness, and therefore that the law of nature forbids it.
Without using the terminology of natural law, psychologist Leonard Carmichael has indicated how an objective, absolute ethic can be established for man on scientific methods, based upon biological and psychological inquiry:
because man has an unchanging and an age-old, genetically determined anatomical, physiological, and psychological make-up, there is reason to believe that at least some of the "values" that he recognized as good or bad have been discovered or have emerged as human individuals have lived together for thousands of years in many societies. Is there any reason to suggest that these values, once identified and tested, may not be thought of as essentially fixed and unchanging? For example, the wanton murder of one adult by another for the purely personal amusement of the person committing the murder, once it is recognized as a general wrong, is likely always to be so recognized. Such a murder has disadvantageous individual and social effects. Or to take a milder example from esthetics, man is always likely to recognize in a special way the balance of two complementary colors because he is born with specially constituted human eyes.
One common philosophic objection to natural law ethics is that it confuses, or identifies, the realism of fact and value. For purposes of our brief discussion, John Wild's reply will suffice:
In answer we may point out that their [natural law] view identifies value not with existence but rather with the fulfillment of tendencies determined by the structure of the existent entity. Furthermore, it identifies evil not with non-existence but rather with a mode of existence in which natural tendencies are thwarted and deprived of realization…. The young plant whose leaves are withering for lack of light is not nonexistent. It exists, but in an unhealthy or privative mode. The lame man is not nonexistent. He exists, but with a natural power partially unrealized. … This metaphysical objection is based upon the common assumption that existence is fully finished or complete. … [But] what is good is the fulfillment of being.
After stating that ethics, for man as for any other entity, are determined by investigating verifiable existing tendencies of that entity, Wild asks a question crucial to all non-theological ethics: "why are such principles felt to be binding on me?" How do such universal tendencies of human nature become incorporated into a person's subjective value scale? Because
the factual needs which underlie the whole procedure are common to man. The values founded on them are universal. Hence, if I made no mistake in my tendential analysis of human nature, and if I understand myself, I must exemplify the tendency and must feel it subjectively as an imperative urge to action.
David Hume is the philosopher supposed by modern philosophers to have effectively demolished the theory of natural law. Hume's "demolition" was two-pronged: the raising of the alleged "fact-value" dichotomy, thus debarring the inference of value from fact, and his view that reason is and can only be a slave to the passions.
"No man is omniscient or infallible — a law, by the way, of man's nature."
In short, in contrast to the natural-law view that man's reason can discover the proper ends for man to follow, Hume held that only the emotions can ultimately set man's ends, and that reason's place is as the technician and handmaiden to the emotions. (Here Hume has been followed by modern social scientists since Max Weber.) According to this view, people's emotions are assumed to be primary and unanalyzable givens.
Professor Hesselberg has shown, however, that Hume, in the course of his own discussions, was compelled to reintroduce a natural-law conception into his social philosophy and particularly into his theory of justice, thus illustrating the gibe of Etienne Gilson: "The natural law always buries its undertakers." For Hume, in Hesselberg's words, "recognized and accepted that the social … order is an indispensable prerequisite to man's well-being and happiness: and that this is a statement of fact." The social order, therefore, must be maintained by man. Hesselberg continues:
But a social order is not possible unless man is able to conceive what it is, and what its advantages are, and also conceive those norms of conduct which are necessary to its establishment and preservation, namely, respect for another's person and for his rightful possessions, which is the substance of justice … But justice is the product of reason, not the passions. And justice is the necessary support of the social order; and the social order is necessary to man's well-being and happiness. If this is so, the norms of justice must control and regulate the passions, and not vice versa.
Hesselberg concludes that "thus Hume's original 'primacy of the passions' thesis is seen to be utterly untenable for his social and political theory, and … he is compelled to reintroduce reason as a cognitive-normative factor in human social relations."
Indeed, in discussing justice and the importance of the rights of private property, Hume was compelled to write that reason can establish such a social ethic: "nature provides a remedy in the judgment and understanding for what is irregular and uncommodious in the affections" — in short, reason can be superior to the passions.
We have seen from our discussion that the doctrine of natural law — the view that an objective ethics can be established through reason — has had to face two powerful groups of enemies in the modern world: both anxious to denigrate the power of man's reason to decide upon his destiny. These are the fideists who believe that ethics can only be given to man by supernatural revelation, and the skeptics who believe that man must take his ethics from arbitrary whim or emotion. We may sum up with Professor Grant's harsh but penetrating view of
the strange contemporary alliance between those who doubt the capacity of human reason in the name of scepticism (probably scientific in origin) and those who denigrate its capacity in the name of revealed religion. It is only necessary to study the thought of Ockham to see how ancient this strange alliance is. For in Ockham can be seen how philosophic nominalism, unable to face the question of practical certainty, solves it by the arbitrary hypothesis of revelation. The will detached from the intellect (as it must be in a nominalism) can seek certainty only through such arbitrary hypotheses.
The interesting fact historically is that these two anti-rationalist traditions — that of the liberal skeptic and the Protestant revelationist — should originally have come from two … opposite views of man. The Protestant dependence upon revelation arose from a great pessimism about human nature … The immediately apprehended values of the liberal originate in a great optimism. Yet … after all, is not the dominating tradition in North America a Protestantism which has been transformed by pragmatic technology and liberal aspirations?
3. Natural Law versus Positive Law
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If, then, the natural law is discovered by reason from "the basic inclinations of human nature … absolute, immutable, and of universal validity for all times and places," it follows that the natural law provides an objective set of ethical norms by which to gauge human actions at any time or place. The natural law is, in essence, a profoundly "radical" ethic, for it holds the existing status quo, which might grossly violate natural law, up to the unsparing and unyielding light of reason. In the realm of politics or State action, the natural law presents man with a set of norms which may well be radically critical of existing positive law imposed by the State. At this point, we need only stress that the very existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a standing reproach to the reign of blindly traditional custom or the arbitrary will of the State apparatus.
– Etienne Gilson
In fact, the legal principles of any society can be established in three alternate ways: (a) by following the traditional custom of the tribe or community; (b) by obeying the arbitrary, ad hoc will of those who rule the State apparatus; or (c) by the use of man's reason in discovering the natural law — in short, by slavish conformity to custom, by arbitrary whim, or by use of man's reason. These are essentially the only possible ways for establishing positive law. Here we may simply affirm that the latter method is at once the most appropriate for man at his most nobly and fully human, and the most potentially "revolutionary" vis-à-vis any given status quo.
In our century, widespread ignorance of and scorn for the very existence of the natural law has limited people's advocacy of legal structures to (a) or (b), or some blend of the two. This even holds for those who try to hew to a policy of individual liberty. Thus, there are those libertarians who would simply and uncritically adopt the common law, despite its many anti-libertarian flaws. Others, like Henry Hazlitt, would scrap all constitutional limitations on government to rely solely on the majority will as expressed by the legislature. Neither group seems to understand the concept of a structure of rational natural law to be used as a guidepost for shaping and reshaping whatever positive law may be in existence.
While natural-law theory has often been used erroneously in defense of the political status quo, its radical and "revolutionary" implications were brilliantly understood by the great Catholic libertarian historian Lord Acton. Acton saw clearly that the deep flaw in the ancient Greek — and their later followers' — conception of natural law political philosophy was to identify politics and morals, and then to place the supreme social moral agent in the State. From Plato and Aristotle, the State's proclaimed supremacy was founded in their view that "morality was undistinguished from religion and politics from morals; and in religion, morality, and politics there was only one legislator and one authority."
Acton added that the Stoics developed the correct, non-State principles of natural law political philosophy, which were then revived in the modern period by Grotius and his followers. "From that time it became possible to make politics a matter of principle and of conscience." The reaction of the State to this theoretical development was horror:
When Cumberland and Pufendorf unfolded the true significance of [Grotius's] doctrine, every settled authority, every triumphant interest recoiled aghast … It was manifest that all persons who had learned that political science is an affair of conscience rather than of might and expediency, must regard their adversaries as men without principle.
Acton saw clearly that any set of objective moral principles rooted in the nature of man must inevitably come into conflict with custom and with positive law. To Acton, such an irrepressible conflict was an essential attribute of classical liberalism: "Liberalism wishes for what ought to be, irrespective of what is." As Himmelfarb writes of Acton's philosophy:
the past was allowed no authority except as it happened to conform to morality. To take seriously this Liberal theory of history, to give precedence to "what ought to be" over "what is" was, he admitted, virtually to install a "revolution in permanence."
And so, for Acton, the individual, armed with natural law moral principles, is then in a firm position from which to criticize existing regimes and institutions, to hold them up to the strong and harsh light of reason. Even the far less politically oriented John Wild has trenchantly described the inherently radical nature of natural-law theory:
the philosophy of natural law defends the rational dignity of the human individual and his right and duty to criticize by word and deed any existent institution or social structure in terms of those universal moral principles which can be apprehended by the individual intellect alone.
"The legal principles of any society can be established in three alternate ways … by slavish conformity to custom, by arbitrary whim, or by use of man's reason."
If the very idea of natural law is essentially "radical" and deeply critical of existing political institutions, then how has natural law become generally classified as "conservative"? Professor Parthemos considers natural law to be "conservative" because its principles are universal, fixed, and immutable, and hence are "absolute" principles of justice. Very true — but how does fixity of principle imply "conservatism"? On the contrary, the fact that natural-law theorists derive from the very nature of man a fixed structure of law independent of time and place, or of habit or authority or group norms, makes that law a mighty force for radical change. The only exception would be the surely rare case where the positive law happens to coincide in every aspect with the natural law as discerned by human reason.
4. Natural Law and Natural Rights
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As we have indicated, the great failing of natural-law theory — from Plato and Aristotle to the Thomists and down to Leo Strauss and his followers in the present day — is to have been profoundly statist rather than individualist. This "classical" natural-law theory placed the locus of the good and of virtuous action in the State, with individuals strictly subordinated to State action. Thus, from Aristotle's correct dictum that man is a "social animal," that his nature is best fitted for social cooperation, the classicists leaped illegitimately to a virtual identification of "society" and "the State," and thence to the State as the major locus of virtuous action. It was, in contrast, the Levellers and particularly John Locke in seventeenth-century England who transformed classical natural law into a theory grounded on methodological and hence political individualism. From the Lockean emphasis on the individual as the unit of action, as the entity who thinks, feels, chooses, and acts, stemmed his conception of natural law in politics as establishing the natural rights of each individual. It was the Lockean individualist tradition that profoundly influenced the later American revolutionaries and the dominant tradition of libertarian political thought in the revolutionary new nation. It is this tradition of natural-rights libertarianism upon which the present volume attempts to build.
Locke's celebrated "Second Treatise on Government" was certainly one of the first systematic elaborations of libertarian, individualistic, natural-rights theory. Indeed, the similarity between Locke' s view and the theory set forth below will become evident from the following passage:
[E]very man has a property in his own person. This nobody has any right to but himself. The labour of his body and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. For this labour being the unquestionable property of the labourer; no man but he can have a right to what that is once joined to….
He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. Nobody can deny but the nourishment is his. I ask then when did they begin to be his? And 'tis plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common. That added something to them more than nature, the common mother of all, had done: and so they become his private right. And will any one say he had no right to those acorns or apples he thus appropriated, because he had not the consent of all mankind to make them his? … If such a consent as that was necessary man had starved, notwithstanding the plenty God had given him. We see in commons, which remain so by compact, that 'tis the taking part of what is common, and removing it out of the state Nature leaves it in, which begins the property; without which the common is of no use.
– Lord Acton
It should not be surprising that Locke's natural-rights theory, as historians of political thought have shown, was riddled with contradictions and inconsistencies After all, the pioneers of any discipline, any science, are bound to suffer from inconsistencies and lacunae that will be corrected by those that come after them. Divergences from Locke in the present work are only surprising to those steeped in the unfortunate modern fashion that has virtually abolished constructive political philosophy in favor of a mere antiquarian interest in older texts. In fact, libertarian natural-rights theory continued to be expanded and purified after Locke, reaching its culmination in the nineteenth century works of Herbert Spencer and Lysander Spooner.
The myriad of post-Locke and post-Leveller natural-rights theorists made clear their view that these rights stem from the nature of man and of the world around him. A few strikingly worded examples: nineteenth-century German-American theorist Francis Lieber, in his earlier and more libertarian treatise, wrote: "The law of nature or natural law … is the law, the body of rights, which we deduce from the essential nature of man." And the prominent nineteenth-century American Unitarian minister, William Ellery Channing: "All men have the same rational nature and the same power of conscience, and all are equally made for indefinite improvement of these divine faculties and for the happiness to be found in their virtuous use." And Theodore Woolsey, one of the last of the systematic natural rights theorists in nineteenth-century America: natural rights are those "which, by fair deduction from the present physical, moral, social, religious characteristics of man, he must be invested with … in order to fulfill the ends to which his nature calls him."
If, as we have seen, natural law is essentially a revolutionary theory, then so a fortiori is its individualist, natural-rights branch. As the nineteenth-century American natural-rights theorist Elisha P. Hurlbut put it:
The laws shall be merely declaratory of natural rights and natural wrongs, and … whatever is indifferent to the laws of nature shall be left unnoticed by human legislation … and legal tyranny arises whenever there is a departure from this simple principle.
A notable example of the revolutionary use of natural rights is, of course, the American Revolution, which was grounded in a radically revolutionary development of Lockean theory during the eighteenth century. The famous words of the Declaration of Independence, as Jefferson himself made clear, were enunciating nothing new, but were simply a brilliantly written distillation of the views held by the Americans of the day:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness [the more common triad at the lime was "Life, Liberty and Property"]. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any form of Government becomes destructive of these ends, it is the Right of the people to alter or to abolish it.
Particularly striking is the flaming prose of the great abolitionist William Lloyd Garrison, applying natural-rights theory in a revolutionary way to the question of slavery:
The right to enjoy liberty is inalienable. … Every man has a right to his own body — to the products of his own labor — to the protection of law. … That all these laws which are now in force, admitting the right of slavery are, therefore, before God, utterly null and void … and therefore they ought instantly to be abrogated.
We shall be speaking throughout this work of "rights," in particular the rights of individuals to property in their persons and in material objects. But how do we define "rights"? "Right" has cogently and trenchantly been defined by Professor Sadowsky:
When we say that one has the right to do certain things we mean this and only this, that it would be immoral for another, alone or in combination, to stop him from doing this by the use of physical force or the threat thereof. We do not mean that any use a man makes of his property within the limits set forth is necessarily a moral use.
Sadowsky's definition highlights the crucial distinction we shall make throughout this work between a man's right and the morality or immorality of his exercise of that right. We will contend that it is a man's right to do whatever he wishes with his person; it is his right not to be molested or interfered with by violence from exercising that right. But what may be the moral or immoral ways of exercising that right is a question of personal ethics rather than of political philosophy — which is concerned solely with matters of right, and of the proper or improper exercise of physical violence in human relations. The importance of this crucial distinction cannot be overemphasized. Or, as Elisha Hurlbut concisely put it: "The exercise of a faculty [by an individual] is its only use. The manner of its exercise is one thing; that involves a question of morals. The right to its exercise is another thing."
5. The Task of Political Philosophy
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It is not the intention of this book to expound or defend at length the philosophy of natural law, or to elaborate a natural-law ethic for the personal morality of man. The intention is to set forth a social ethic of liberty i.e., to elaborate that subset of the natural law that develops the concept of natural rights, and that deals with the proper sphere of "politics," i.e., with violence and non-violence as modes of interpersonal relations. In short, to set forth a political philosophy of liberty.
In our view the major task of "political science" or better, "political philosophy" is to construct the edifice of natural law pertinent to the political scene. That this task has been almost completely neglected in this century by political scientists is all too clear. Political science has either pursued a positivistic and scientistic "model building," in vain imitation of the methodology and content of the physical sciences, or it has engaged in purely empirical fact-grubbing. The contemporary political scientist believes that he can avoid the necessity of moral judgments, and that he can help frame public policy without committing himself to any ethical position. And yet as soon as anyone makes any policy suggestion, however narrow or limited, an ethical judgment — sound or unsound — has willy-nilly been made.
"Let us then cast out the hobgoblins of Wertfreiheit, of positivism, of scientism."
The difference between the political scientist and the political philosopher is that the "scientist's" moral judgments are covert and implicit, and therefore not subject to detailed scrutiny, and hence more likely to be unsound. Moreover, the avoidance of explicit ethical judgments leads political scientists to one overriding implicit value judgment — that in favor of the political status quo as it happens to prevail in any given society. At the very least, his lack of a systematic political ethics precludes the political scientist from persuading anyone of the value of any change from the status quo.
In the meanwhile, furthermore, present-day political philosophers generally confine themselves, also in a Wertfrei manner, to antiquarian descriptions and exegeses of the views of other, long-gone political philosophers. In so doing, they are evading the major task of political philosophy, in the words of Thomas Thorson, "the philosophic justification of value positions relevant to politics."
In order to advocate public policy, therefore, a system of social or political ethics must be constructed. In former centuries this was the crucial task of political philosophy. But in the contemporary world, political theory, in the name of a spurious "science," has cast out ethical philosophy, and has itself become barren as a guide to the inquiring citizen. The same course has been taken in each of the disciplines of the social sciences and of philosophy by abandoning the procedures of natural law. Let us then cast out the hobgoblins of Wertfreiheit, of positivism, of scientism. Ignoring the imperious demands of an arbitrary status quo, let us hammer out — hackneyed cliché though it may be — a natural-law and natural-rights standard to which the wise and honest may repair. Specifically, let us seek to establish the political philosophy of liberty and of the proper sphere of law, property rights, and the State.
 From Franciscus Suarez, De Legibus ac Deo Legislatore (1619), lib. II, Cap. vi. Suarez also noted that many Scholastics "seem therefore logically to admit that natural law does not proceed from God as a lawgiver, for it is not dependent on God's will." Quoted in A.P. d'Enfreves, Natural Law (London: Hutchinson University Library, 1951), p. 71.
 Thomas E Davitt, S.J., "St. Thomas Aquinas and the Natural Law," in Arthur L. Harding, ed., Origins of the Natural Law Tradition (Dallas, Tex.: Southern Methodist University Press, 1954), p. 39. Also see Brendan F. Brown, ed., The Natural Law Reader (New York: Oceana Pubs., 1960), pp. 101–4.
 Quoted in d'Entrèves, Natural Law, pp. 52–53. See also Otto Gierke, Natural Law and the Theory of Society, 1500 to 1800 (Boston: Beacon Press, 1957), pp. 98–99.
 D'Entrèves, Natural Law, pp. 51–52. Also see A.H. Chroust, "Hugo Grotius and the Scholastic Natural Law Tradition," The New Scholasticism (1943), and Frederick C. Copleston, S.J., A History of Philosophy (Westminster, Md.: Newman Press, 1959), 2, pp. 330f. On the neglected influence of the Spanish Scholastic Suarez on modern philosophers, see Jose Ferrater Mora, "Suarez and Modern Philosophy," Journal of the History of Ideas (October 1953): 528–47.
 See Gierke, Natural Law and the Theory of Society, p. 289. Also see Herbert Spencer, An Autobiography (New York: D. Appleton, 1904), vol. 1, p. 415.
 Thus, see Carl L. Becker, The Heavenly Cityof the Eighteenth-century Philosophers (New Haven, Conn.: Yale University Press, 1957), p. 8.
 The late realist philosopher John Wild, in his important article, "Natural Law and Modern Ethical Theory," Ethics (October 1952), states:
Realistic [natural law] ethics is now often dismissed as theological and authoritarian in character. But this is a misunderstanding. Its ablest representatives, from Plato and Aristotle to Grotius, have defended it on the basis of empirical evidence alone without any appeal to supernatural authority (p. 2, and pp. 1–13).
Also see the denial of the existence of such a thing as "Christian philosophy" any more than "Christian hats and shoes" by the Catholic social philosopher Orestes Brownson. Thomas T. McAvoy, C.S.C., "Orestes A. Brownson and Archbishop John Hughes in 1860," Review of Politics (January 1962): 29.
 Frederick C. Copleston, S.J., Aquinas (London: Penguin Books, 1955), p. 204.
 Ibid., pp. 204–05.
 Ibid., p. 212.
 Thus Copleston:
Inanimate bodies act in certain ways precisely because they are what they are, and they cannot act otherwise; they cannot perform actions which are contrary to their nature. And animals are governed by instinct. In fine, all creatures below man participate unconsciously in the eternal law, which is reflected in their natural tendencies, and they do not possess the freedom which is required in order to be able to act in a mariner incompatible with this law. It is therefore essential that he [man] should know the eternal law in so far as it concerns himself. Yet, how can he know it? He cannot read, as it were, the mind of God… [but] he can discern the fundamental tendencies and needs of his nature, and by reflecting on them he can come to a knowledge of the natural moral law…. Every man possesses … the light of reason whereby he can reflect … and promulgate to himself the natural law, which is the totality of the universal precepts or dictates of right reason concerning the good which is to be pursued and the evil which is to be shunned (Ibid., pp. 213–14).
 Leo Strauss, "Relativism," in H. Schoeck and J. W. Wiggins, eds., Relativism and the Study of Man (Princeton, NJ.: D. Van Nostrand, 1961), pp. 144–45. For a devastating critique of an attempt by a relativistic political scientist to present a "value-free" case for freedom and the self-development of the person, see Walter Berns, "The Behavioral Sciences and the Study of Political Things: The Case of Christian Bay's The Structure of Freedom," American Political Science Review (September 1961): 550–59.
 Toohey adds that "scholastic philosophy is the philosophy which teaches the certitude of human knowledge acquired by means of sense experience, testimony, reflection, and reasoning." John J. Toohey, S.J., Notes on Epistemology (Washington, D.C.: Georgetown University, 1952), pp. 111–12.
 Henry B. Veatch, in his For an Ontology of Morals: A Critique of Contemporary Ethical Theory (Evanston, Ill.: Northwestern University Press, 1971), p. 7, states:
Recourse must be had to an older notion than that which has now come to be in fashion among contemporary scientists and philosophers of science…. Surely, in that everyday world of common-sense existence in which, as human beings, and for all of cur scientific sophistication, we can hardly cease to live and move and have our being, we do indeed find ourselves constantly invoking an older and even a decidedly common sense notion of "nature" and "natural law." For don't we all recognize that a rose is different from an eggplant, and a man from a mouse, and hydrogen from manganese? To recognize such differences in things is surely to recognize that they behave differently: one doesn't expect of a man quite the same things that one does of a mouse, and vice versa. Moreover, the reason our expectations thus differ as to what various types of things or entities will do, or how they will act and react, is simply that they just are different kinds of things. They have different "natures," as one might say, using the old-fashioned terminology.
Leo Strauss (Natural Right and History [Chicago: University of Chicago Press, 1953]) adds:
Socrates deviated from his predecessors by identifying the science of … everything that is, with the understanding of what each of the beings is. For "to be" means "to be something" and hence to be different from things which are "something else": "to be" means therefore "to be a part" (p. 122).
 For a defense of the concept of nature, see Alvin Plantinga, The Nature of Necessity (Oxford: Clarendon Press, 1974), pp. 71–81.
 See H.W.B. Joseph, An Introduction to Logic, 2nd rev. ed (Oxford: Clarendon Press, 1916), pp. 407–9. For a hard-hitting defense of the view that causation states a necessary relation among entities, see R. Harre and E. H. Madden, Causal Powers: A Theory of Natural Necessity (Totowa, N.J.: Rowman and Littlefield, 1975).
 See Murray N. Rothbard, Individualism and the Philosophy of the Social Sciences (San Francisco: Cato Institute, 1979), p. 5.
 And there is a further point: the very existence of a difference of opinion seems to imply that there is something objective about which disagreement can take place; for otherwise, there would be no contradictions in the different "opinions" and no worry about these conflicts. For a similar argument in refutation of moral subjectivism see G.E. Moore, Ethics (Oxford, 1963 [1912)), pp. 63ff.
 The psychologist Leonard Carmichael, in "Absolutes, Relativism and the Scientific Psychology of Human Nature," in H. Schoeck and J. Wiggins, eds., Relativism and the Study of Man (Princeton, N.J.: 1). Van Nostrand, 1961), p. 16, writes:
We do not turn aside from what we know about astronomy at any time because there is a great deal we do not know, or because so much that we once thought we knew is no longer recognized as true. May not the same argument be accepted in our thinking about ethical and esthetic judgments?
 Joseph Cropsey, "A Reply to Rothman," American Political Science Review (June 1962): 355. As Henry Veatch writes, in For an Ontology of Morals, pp. 7–8:
Moreover, it is in virtue of a thing's nature — i.e., of its being the kind of thing that it is — that it acts and behaves the way it does. Is it not also in virtue of a thing's nature that we often consider ourselves able to judge what that thing might or could be, but perhaps isn't? A plant, for example, may be seen to be underdeveloped or stunted in its growth. A bird with an injured wing is quite obviously not able to fly as well as others of the same species…. And so it is that a thing's nature maybe thought of as being not merely that in virtue of which the thing acts or behaves in the way it does, but also as a sort of standard in terms of which we judge whether the thing's action or behavior is all that it might have been or could have been.
 For a similar approach to the meaning of goodness, see Peter Geach, "Good and Evil," in Philippa R. Foot, ed., Theories of Ethics (London: Oxford University Press, 1967), pp. 74–82.
 Contrast John Wild, in "Natural Law and Modern Ethical Theory," Ethics (October 1952): 2, who says:
Realistic ethics is founded on the basic distinction between human need and uncriticized individual desire or pleasure, a distinction not found in modern utilitarianism. The basic concepts of so-called "naturalistic" theories are psychological whereas those of realism are existential and ontological.
 William J. Kenealy, S.J., "The Majesty of the Law," Loyola Law Review (1949–50): 112–13; reprinted in Brendan F.Brown, ed., The Natural Law Reader (NewYork: Oceana, 1960), p. 123.
 Blackstone, Commentaries on the Laws of England, Book 1: quoted in Brown, Natural Law Reader, p. 106.
 Carmichael, "Absolutes," p.9.
 Wild, "Natural Law," pp. 4–5. Wild continues on p.11:
Existence is … not a property but a structuralized activity. Such activities are a kind of fact. They can be observed and described by judgments that are true or false: human life needs material artifacts; technological endeavors need rational guidance; the child has cognitive faculties that need education. Value statements are founded on the directly verifiable fact of tendency or need. The value or realization is required not merely by us but by the existent tendency for its completion. From a sound description and analysis of the given tendency we can infer the value founded upon it This is why we do not say that moral principles are mere statements of fact, but rather that they are "founded" on facts.
On pp. 2–4, Wild says:
The ethics of natural law … recognizes prescriptive moral laws but asserts that these are founded on tendential facts which may be described…. Goodness … must … be conceived dynamically as an existential mode, the realization of natural tendency. In this view, the world is not made up of determinate structures alone, but of determinate structures in an act of existing which they determine toward further appropriate acts of existing…. No determinate structure cart be given existence without determining active tendencies. When such a tendency is fulfilled in accordance with natural law, the entity is said to be in a stable, healthy, or sound condition — adjectives of value. When it is obstructed or distorted, the entity is said to be in an unstable, diseased or unsound condition — adjectives of disvalue. Goodness and badness in their ontological sense are not phases of abstract structure, but rather modes of existence, ways in which the existential tendencies determined by such structures are either fulfilled or barely sustained in a deprived, distorted state.
 Ibid., p. 12. For more on a defense of natural law ethics, see John Wild, Plato's Modern Enemies and the Theory of Natural Law (Chicago: University of Chicago Press, 1953); Henry Veatch, Rational Man: A Modern Interpretation of Aristotelian Ethics (Bloomington: University of Indiana Press, 1962); and Veatch, For An Ontology of Morals.
 Hume in fact failed to prove that values cannot be derived from facts. It is frequently alleged that nothing can be in the conclusion of an argument which was not in one of the premises; and that therefore, an "ought" conclusion cannot follow from descriptive premises. But a conclusion follows from both premises taken together; the "ought" need not be present in either one of the premises so long as it has been validly deduced. To say that it cannot be so deduced simply begs the question. See Philippa R. Foot, Virtues and Vices (Berkeley: University of California Press, 1978), pp. 99–105.
 A. Kenneth Hesselberg, "Hume, Natural Law and Justice," Duquesne Review (Spring 1961): 46–47.
 David Hume, A Treatise of Human Nature, quoted in Hesselberg, "Hume, Natural Law, and Justice," p. 61. Hesselberg adds perceptively that Hume's sharp ought-is dichotomy in the earlier chapters of Hume's Treatise stemmed from his restricting the meaning of "reason" to finding pleasure — pain objects, and determining the means to achieve them. But, in the later chapters on justice, the very nature of the concept compelled Hume "to assign a third role to reason, namely its power to judge actions in terms of their suitability, or conformity or disconformity, to man's social nature, and thus paved the way for the return to a natural law concept of justice." Ibid., pp. 61–62.
For some doubt whether or not Hume himself intended to assert the fact-value dichotomy, see A.C. MacIntyre, "Hume on 'Is' and 'Ought," in W.D. Hudson, ed., The Is-Ought Question (London: Macmillan, 1969), pp. 35–50.
 George P. Grant, "Plato and Popper," The Canadian Journal of Economics and Political Science (May 1954): 191–92.
 Edwin W. Patterson, Jurisprudence Men and Ideasof the Law (Brooklyn, N.Y.: Foundation Press, 1953), p. 333.
 Hazlitt's reaction to my own brief discussion of the legal norms essential to any free-market economy [in Man, Economy, and State: A Treatise on Economic Principles (Princeton, N.J.: D. Van Nostrand, 1962] was a curious one. While critical of blind adherence to common law in other writers, Hazlitt could only react in puzzlement to my approach; calling it "abstract doctrinaire logic" and "extreme a priorism," he chided me for "trying to substitute his own instant jurisprudence for the common law principles built up through generations of human experience." It is curious that Hazlitt feels common law to be inferior to arbitrary majority will, and yet to be superior to human reason! Henry Hazlitt, "The Economics of Freedom," National Review (September 25, 1962): 232.
 John Edward Emerich Dalberg-Acton, Essays on Freedom and Power (Glencoe, Ill.: Free Press, 1948), p. 45. Also see Gertrude Himmelfarb, Lord Acton: A Study in Conscience and Politics (Chicago: University of Chicago Press, 1962), p. 135.
 Acton, Essays, p. 74. Himmelfarb correctly noted that "for Acton, politics was a science, the application of the principles of morality." Gertrude Himmelfarb, "Introduction," ibid., p. xxxvii
 Himmelfarb, Lord Acton, p. 204. Contrast the exclamation of bewilderment and horror by the leading nineteenth-century German Conservative, Adam Muller: "A natural law which differs from the positive law!" See Robert W. Lougee, "German Romanticism and Political Thought," Review of Politics (October 1959): 637.
 Himmelfarb, Lord Acton, p. 205.
 John Wild, Plato's Modern Enemies and the Theory of Natural Law (Chicago: University of Chicago Press, 1953), p. 176. Note the similar assessment by the conservative Otto Gierke, in Natural Law and the Theory of Society, 1500 to 1800 (Boston: Beacon Press, 1957), pp. 35–36, who was for that reason hostile to natural law:
In opposition to positive jurisprudence which still continued to show a Conservative trend, the natural-law theory of the State was Radical to the very core of its being … It was also directed… not to the purpose of scientific explanation of the past, but to… the exposition and justification of a new future which was to be called into existence.
 George S. Parthemos, "Contemporary Juristic Theory, Civil Rights, and American
Politics," Annals of the American Academy of Political and SocialScience (November 1962): 101–2.
 The conservative political scientist Samuel Huntington recognizes the rarity of this event:
No ideational theory can be used to defend existing institutions satisfactorily, even when those institutions in general reflect the values of that ideology. The perfect nature of the ideology's ideal and the imperfect nature and inevitable mutation of the institutions create a gap between the two. The ideal becomes a standard by which to criticize the institutions, much to the embarrassment of those who believe in the ideal and yet still wish to defend the institutions.
Huntington then adds the footnote: "Hence any theory of natural law as a set of transcendent and universal moral principles is inherently non-conservative…. Opposition to natural law [is] … a distinguishing characteristic of conservatism." Samuel P. Huntington "Conservatism as an Ideology," American Political Science Review (June 1957): 458–59. See also Murray N. Rothbard, "Huntington on Conservatism: A Comment," American Political Science Review (September 1957): 784–87.
 For a critique of such typical confusion by a modern Thomist, see Murray N. Rothbard, Power and Market, 2nd ed. (Kansas City: Sheed Andrews and McMeel, 1977), pp. 237–38. Leo Strauss's defense of classical natural law and his assault on individualistic natural-rights theory may be found in his Natural Rights and History (Chicago: University of Chicago Press, 1953).
 John Locke, An Essay Concerning the True Origin, Extent, and End of Civil Government, V. pp.27–28, in Two Treatises of Government, P. Laslett, ed. (Cambridge: Cambridge University Press, 1960), pp. 305–7.
 Current scholars, ranging from Marxists to Straussians consider Thomas Hobbes rather than Locke as the founder of systematic individualist, natural rights theory. For a refutation of this view and a vindication of the older view of Hobbes as a statist and a totalitarian see Williamson M. Evers, "Hobbes and Liberalism," The Libertarian Forum (May 1975): 4–6 [available in PDF]. Also see Evers, "Social Contract: A Critique," The Journal of Libertarian Studies 1 (Summer 1977): 187–88 [available in PDF]. For a stress upon Hobbes's absolutism by a pro-Hobbesian German political theorist, see Carl Schmitt, Der Leviathan in der Staatslehre Thomas Hobbes (Hamburg, 1938). Schmitt was for a time a pro-Nazi theorist.
 Francis Lieber, Manual of Political Ethics (1838); Theodore Woolsey, Political Science (1877); cited in Benjamin F. Wright, Jr., American Interpretations of Natural Law (Cambridge, Mass.: Harvard University Press, 1931), pp. 261ff., 255ff., 276ff. William Ellery Channing, Works (Boston: American Unitarian Association, 1895), p. 693.
 Elisha P. Hurlbut, Essays on Human Rights and Their Political Guarantees (1845), cited in Wright, American Interpretations, pp. 257 ff.
 See Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass.: Belknap Press of Harvard University Press, 1967).
 William Lloyd Garrison, "Declaration of Sentiments of the American Anti-Slavery Convention" (December 1833), cited in W. and J. Pease, eds., The Antislavery Argument (Indianapolis: Bobbs-Merrill, 1965).
 James A. Sadowsky, S.J., "Private Property and Collective Ownership," in Tibor Machan, ed., The Libertarian Alternative (Chicago: Nelson-Hall, 1974), pp. 120–21.
 Hurlbut, cited in Wright, American Interpretations, pp. 257 ff.
 Cf. W. Zajdlic, "The Limitations of Social Sciences," Kyklos 9 (1956): 68–71.
 Hence, as Thorson points out, political philosophy is a subdivision of the philosophy of ethics, in contrast to "political theory" as well as positivistic analytic philosophy. See Thomas Landon Thorson, "Political Values and Analytic Philosophy," Journal of Politics (November 1961): 712n. Perhaps Professor Holton is right that "the decline in political philosophy is one part of a general decline," not only in philosophy itself, but also "in the status of rationality and ideas as such." Holton goes on to add that the two major challenges to genuine political philosophy in recent decades have come from historicism — the view that all ideas and truths are relative to particular historical conditions — and scientism, the imitation of the physical sciences. James Holton, "Is Political Philosophy Dead?" Western Political Quarterly (September 1961): 75ff.
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